Hope and Trust

                “I do not agree that  governments will become addicted to arbitrary power.”

                                                                                                                    QC Mr. Harish Salve

To appreciate this post better, I would request you to first read an article (wherefrom the captioned quote has been extracted) by Mr. Harish Salve. If you type “Corona and the Courts” on google, you will be able to find your way to this article that was published on the TOI blogs on April 21,2020. 

In the article referred to above, Mr. Salve seems to be making an argument for executive absolutism.

He argues that the COVID-19 crisis is like wartime and warrants arming the executive with extraordinary powers to impose measures that in ordinary circumstances would be deemed unconstitutional.

He begins his argument by claiming that he does not agree with those who say that governments will become addicted to arbitrary and unchecked power and that bestowing extraordinary powers to the government will permanently damage democracy. I believe Mr.Salve has forgotten the theory of separation of powers. It is wishful thinking to presume that establishments  will not get addicted to power and that is why every moden constitution worth its salt has elaborate mechanisms in place to prevent excesses by the executive. 

I am grateful to the constituent assembly for incorporating this system of checks and balances in our constitution that Mr. Salve dismisses nonchalantly. 

Notwithstanding Mr.Salve’s faith in the inherent goodness of governments, he makes his argument more preposterous by citing the example of the emergency of 1975 when the then incumbent had, citing imminent threat to the internal security of India, assumed wide and arbitrary powers (In that sense the situation today is not much different. There is grave danger to the country.  

He claims that the said emergency may have put our democracy in deep freeze for nearly two years,but it did not damage Indian democracy and hence Indian democracy would surely survive the lockdown measures.

There are two very glaring defects in his thesis. Firstly, Mr. Salve seems to have missed the point that if the Indian democracy was not damaged during the two year emergency, it was because many citizens refused to submit to government excesses and did not take the autocracy in their stride. 

Now if Mr. Harish Salve is to be believed , the Indira Gandhi government would have voluntarily relinquished power after the state of emergency abated, since governments do not get addicted to power in democracies. We all now know , with the benefit of hindsight, that there was a very low probability of that happening back then. 

To those who may claim that the emergency of 1975 was clearly a fabrication and hence deserved to be opposed whereas the COVID-9 induced crisis is a clear and present danger that warrants unconditional submission to the executive power, I must, reluctantly point out that without the benefit of the aforesaid hindsight, it is very hard to say with certainty , that but for the protests that broke out against the national emergency, the majority of the people would have seen the executive diktats without suspicion and would have simply followed orders. This is not an unlikely scenario for people who firmly believe that cow urine can cure COVID-19 or plastic surgery was developed in India. Compared to these , the reasons given for the continuation of the emergency ,following a deadly war , seem quite believable. 

Hence, Mr. Salve’s belief in the inherent goodness of governments is ridiculous and dangerous. 

Secondly, and even more importantly, Mr. Salve’s claim that the emergency of 1975 did not permanently damage Indian democracy is absolutely wrong. The emergency may have failed to further the incumbent government’s ambitions to stay in power, but it proved to be an invaluable case study that helped the political class immensely.

Thirty three years since the emergency , we find ourselves in a situation that quite resembles the emergency we left behind. The only difference being that the constitutional values are now being eroded by carefully avoiding the mistakes the rulers during the times of emergency made. 

To begin with, the press and media have been silenced or bought off. This does not need elaboration.  Moving on, dissent has been crushed and students who are the mainstay of dissent have been persecuted for voicing their opinions. Draconian legislation and the draconian use of legislations has clamped freedom in an unprecedented manner. The judiciary’s power has receded dramatically. Mr. Salve says that the judiciary should not restrict executive action. It is a redundant prayer, for the judiciary has shown little mettle in standing up to the executive of late. 

Thus,the combined effect of the above developments ensures that people are deprived of their freedom and dignity as humans and they do not even have recourse to the law since the formal state of emergency exists not. This is the damage that the emergency of 1975 has inflicted on our democracy. 

Further in the article Mr. Salve seems to go for the overkill when he uses the words “remarkable deference” that the judiciary is showing towards the executive. Of course this deference predates the COVID crisis and will continue, post it as well. 

In demanding that cases filed by interest groups representing those whom the system has forgotten, Mr.Salve displays inexplicable apathy. It is easy to ignore whom the system has forgotten if you are not of them. Admiring the courts’ reticence to entertain PILs only goes on to show the immense erosion of constitutional values. 

Yes, the government is accountable to the parliament and will be rigorously judged in the next elections. However, allowing the government extraordinary powers may help it to escape all accountability and contrary to Mr. Salve‘s belief may set a tradition  for the arbitrary abuse of power .

I agree with Mr. Salve that democracy is a fragile virtue. And in times of crises  unity is important undoubtedly, but so is alacrity on the part of the citizenry to ensure that the executive does not use the crisis to further its own ends.